Education Law Notes  

When an employee gives notice of the need to take a leave of absence for military service, there are some questions that municipal employers will reflexively ask: Do we have to permit the leave?  Must the employee be paid his/her usual salary while on leave? Is there any way to limit the duration of the leave or require that it be taken at a particular time of year?

Do we have to permit the leave? 

Yes. Municipal employees who are members of the armed forces of the state or the armed forces of the United States are entitled to be absent from work to perform military duty, including meetings, drills and trainings. Employees cannot be required to use vacation or holiday leave during their absence. There are no special exemptions for municipalities from the state and federal laws that protect employment and reemployment rights of armed forces service members. See Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311, Conn. Gen. Stat. §§ 27-33a, 27-34a.

Must the employee be paid his/her usual salary while on leave?

Maybe. This depends upon the type, purpose and length of the military service. Federal law (USERRA) does not require that employees be paid their usual salary while on military leave, but under Connecticut General Statutes §7-461, an officer or employee of a town, city or borough is entitled to receive the difference between such person’s salary and military compensation under the following circumstances:

1. The officer or employee is a bona fide member of the reserve corps of the United States Army, Navy, Marine Corps, Coast Guard and Air Force and any reserve component thereof, including the Connecticut National Guard performing duty under federal authority;
2. The leave is to engage in “required field training;” and
3. The period of absence does not exceed thirty days in a calendar year. (In other words, only the first thirty days of leave in a calendar year are partially compensated.)

By this statute, employees who are members of the armed forces of the state, including the Connecticut National Guard acting under the authority of the state, are not entitled to be paid the difference between salary and military compensation. Keep in mind that paying some portion of an employee’s salary during military leave (regardless of the type, purpose and duration) might be available to some employees pursuant to an employment contract, collective bargaining agreement or established past practice.

Is there any way to limit the duration of the leave or require that it be taken at a particular time of year? 

Probably not. Federal regulations state that employees are not required to accommodate employers’ concerns regarding the timing, frequency or duration of military leave.  That being said, the federal regulations do allow an employer “to bring its concerns over the timing, frequency, or duration of the employee’s service to the attention of the appropriate military authority.” 20 C.F.R. § 1002.104.  Such military authorities are “required to consider requests from employers of National Guard and Reserve members to adjust scheduled absences from civilian employment to perform service.”  Since the military authorities are only required to “consider” such requests and there could be issues with having such a request heard before the leave commences, the relative value of this provision is unclear.